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people/e/eichmann.adolf/transcripts/Sessions/Defence-Submission-01-06
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Furthermore it is necessary to discuss the view that, at any
any rate the verdict of the International Military Tribunal
had created international law (which possibly was then new
but is now in force). A discussion of the Nuremberg judgment
is also indispensable for the reason that the membership in
an "enemy organization" has been imputed as a crime to the
Accused and the legal definition of an "enemy organization"
in sec. 3 (b) (1) of the " Nazis and Nazi Collaborators
(Punishment) Law" expressly refers to art. 9 of the Charter
and to the judgment of the International Military Tribunal
in the case of the main war criminals and therefore
incorporates in its provisions expressis verbis the
provision of the London Charter and the findings of the
Nuremberg verdict.
(aa) Before entering into a detailed critical discussion, an
important statement on the question of crimes against
humanity has to be made:
Art. 6 (c) of the Charter, according to its wording, also
allowed the prosecution of such crimes against humanity
committed by Germans in Germany against German citizens
before the outbreak of World War II. It is to be emphasized
that the International Military Tribunal refused to
recognize the existence of jurisdiction of such a wide
extent:
"With regard to crimes against humanity, there is no
doubt whatever that political opponents were murdered
in Germany before the War, and that many of them were
kept in concentration camps in circumstances of great
horror and cruelty...The persecution of Jews during the
same period is established beyond all doubt. To
constitute crimes against humanity, the acts relied on
before the outbreak of war must have been in execution
of, or in connection with, any crime within the
jurisdiction of the Tribunal. The Tribunal is of the
opinion that, revolting and horrible as many of these
crimes were, it has not been satisfactorily proved that
they were done in execution of, or in connection with,
any such crime. The Tribunal therefore cannot make a
general declaration that the acts before 1939 were
crimes against humanity within the meaning of the
Charter; but from the beginning of the War in 1939 war
crimes were committed on a vast scale, which were also
crimes against humanity; and insofar as the inhumane
acts charged in the Indictment and committed after the
beginning of the War did not constitute war crimes,
they were all committed in execution of, or in
connection with, the aggressive war, and therefore
constituted crimes against humanity."[133]
Telford Taylor, the American chief prosecutor in the
American trials of war criminals held after the trial of the
main war criminals, has therefore summarized most properly
these statements of the International Military Tribunal as
follows:
"Atrocities committed before the war, horrible as they
were, were declared as being outside the jurisdiction
of the International Military Tribunal, according to
the wording of the Charter."[134]
The origin of this restrictive interpretation of art. 6 of
the Charter is to be found, probably, in the feeling of the
Tribunal - although unexpressed - that, after all, its
jurisdiction is based upon the laws of war and occupation.
The Nuremberg trials against war criminals held after the
trials against the major war criminals adopted, by the way,
the restrictive interpretation of the International Military
Tribunal.[135]
Now, Israel certainly cannot rely upon the laws of war and
occupation in order to justify its claim for criminal
jurisdiction over the Accused Eichmann. However this result
does not make unnecessary a detailed discussion of the
London Charter and the Nuremberg judgment. For it is too
obvious that the objection might be raised that the London
Charter might also be interpreted quite properly - even that
it ought to be interpreted - so that the prosecution of
crimes against humanity would be permissible even if they
had not been committed "in execution of, or in connection
with, the aggressive war." This objection is to be expected
all the more as the restrictive interpretation of the
International Military Tribunal had already been expressly
subject to negative criticism in comments on the
Judgment.[136]
(bb) The London Charter and the legal principles underlying
the judgment of the International Military Tribunal at
Nuremberg are not in conformity with international law
which had been in force in 1945/46, and in particular at the
time when the alleged offences were committed.
The view - namely that neither the Charter nor the judgment
had merely given positive expression to international law
which anyhow had already been in force - had been held by
many respected and unbiased observers already at the time
when the prosecution of German war criminals and crimes
against humanity by the occupying powers was only at the
stage of planning. Additional voices in the same sense were
heard after the end of the Nuremberg Trials.
The present State Attorney of the Land Hessen, Bauer,
believed himself entitled to state, in a book written
already prior to the end of the War, that the Allied Powers
were conservatives holding up the status quo also in its
moral and legal aspects in their struggle against Hitler.
"Their victories will also be the victory of the existing
law."[137]
In conformity with this fighting tendency, the meaning of
the planned trials against the German war criminals would
therefore be the victory of existing law over revolutionary
law (namely the law of National Socialism).[138] The actual
course of events has proved this expectation of Bauer's to
be erroneous. Actually, the London Charter and the Nuremberg
judgment themselves amounted to "revolutionary law" (it is
true - without having the law-making force of a revolution,
as will be demonstrated later on).
In proof of the fact that the London Charter not merely
defined and laid down in writing international law which had
been in force, but that its legal principles rather
constitute a novum in the history of international law, a
statement of the British delegate to the London Conference
(meeting of 29 June 1945) and - later on - acting British
Chief Prosecutor before the International Military Tribunal,
Sir David Maxwell-Fyfe, is most characteristic:
"What we want to abolish at the trial is a discussion
as to whether the acts are violations of international
law or not. We declare what the international law is,
so that there won't be any discussion on whether it is
international law or not."[139]
The revolutionary nature of the "law" of the London Charter
has therefore frequently been observed and objected to.
Thus, both Christian churches in Germany have criticized and
emphasized this fact in their official reaction to the
Nuremberg military tribunals:
"The sentences passed by the Nuremberg Tribunals are
based upon new and up to now nowhere specified
international law."[140]
"The Nuremberg law courts condemn Germans according to
a right until now unknown in Germany and to which the
nations applying it against Germany are not willing to
submit."[141]
In this respect the harshest and most far-reaching comment
has been made by the American scholar of International Law
Borchhard:
"However little sympathy needs to be wasted on the Nazi
bigwigs there condemned, attention must be called to
the fact that it was not an old or new international
law which was applied, but a new municipal law, a
criminal law, which was not theretofore known."[142]
The best demonstration for the total departure from the
international law which up to then had been in force, in the
London Charter and the Nuremberg judgment of the
International Military Tribunal, will be found in two
examples which, it is true, are not directly relevant to the
Eichmann case, but which illuminate glaringly the aforesaid
nature of the Charter and of the judgment. These are the
questions of the criminal nature of an aggressive war and of
the reliance upon the plea of superior orders.
The criminal nature of an aggressive war:
The Nuremberg judgment of the International Military
Tribunal has advanced the theory that art. 6(a) of the
Charter - which makes the planning and carrying out of an
aggressive war a criminal offence - is in conformity with
existing international law, since this already recognizes
the existence of the offence of "crime against peace." In
particular, the tribunal, basing itself upon the Kellogg
Pact, not only arrived at the correct conclusion that this
pact had branded every aggressive war as being contrary to
international law, but it went much further and based upon
the Kellogg Pact also the criminal nature of every
aggressive war and, in addition to further grounds, the
individual criminal responsibility of organs of a State
which planned, prepared and carried out the aggressive
war.[143]
The inaccuracy of this view has been recognized already at
an early date[144] and will be hardly contested today
seriously any more. The wealth of comments cannot be quoted
here otherwise than by way of selection.
E.g., the Swiss scholar of criminal law, Professor
Pfenninger, demonstrated already in 1945,[145] that an
aggressive war, it is true, is prohibited by the Kellogg
Pact and by the covenant of the League of Nations, but that
it had not been declared to be a crime and an extraditable
offence. It had to be "stated that today neither a rule of
municipal criminal law nor a rule of international criminal
law would justify a "judgment of guilty."[146]
Pfenniger declares that he was at a loss to understand how
the Nuremberg Trials - which had not yet begun at that time
- would overcome this difficulty.
The same opinion was voiced, prior to the end of the War, by
Fritz Bauer[147] who concluded:
"Therefore, guilt for the (outbreak of) war is not
punishable."[148]
But this view is held not only by continental jurists, but
mainly - and frequently in very strong terms - by Anglo-
American jurists.
The following, e.g., is the comment of the London scholar of
international law, H.A. Smith, in respect of the problem:
There is no offence in international law providing for the
individual punishment of an aggressive war.
"It may safely be said that no lawyer would have dared
to say in 1939 that the rulers of a State could be
punished as individual criminals for preparing an
aggressive war."[149]
Smith has also voiced this opinion elsewhere and discussed
on that occasion in detail the legal meaning of the Kellogg
Pact.[150] Again, Smith's comments have met with
Morgan's[151] express approval ("perfectly correct").
Likewise, a certainly unbiased witness for the soundness of
this view is Lord Hankey whose own name was included in a
German list of war criminals of the Allied Powers[152] and
who, therefore, has every reason to hold a view loaded with
resentment.
In addition to the foregoing, the comments of Kelsen,[153]
Finch,[154] Guggenheim[155] and Jescheck,[156] making an
aggressive war a criminal offence, exceeds the scope of
existing international law.
Verdross' lucid and convincing demonstrations shall
summarize and conclude the discussion of this question:
"The London Agreement, however, exceeds the scope of
general international law by...making crimes against
peace punishable. This term comprises, according to the
Charter, planning, preparing, starting and carrying out
of aggressive wars, as well as a participation in such
undertakings. These offences had been unknown before in
international as well as in municipal law. The
Nuremberg International Military Tribunal, it is true,
tried to show that crimes against peace had already
been prohibited by rules of general international law,
an aggressive war being a crime, at any rate, since the
conclusion of the Kellog Pact. However, in so doing,
the Tribunal had overlooked the fact that the Kellogg
Pact had imposed obligations only upon States, but not
upon individuals. It also had not provided for
sanctions, but only laid down that a state which
violates the pact will be deprived of its benefits -
that is to say: it can be attacked legitimately by all
the other states, parties to the covenant. The Covenant
does not contain any hint at the existence of criminal
sanctions against individuals.[157] The assertion in
the judgment in question that the respect of
obligations in international law can only be guaranteed
by the punishment of the guilty politicians and their
accessories may be correct de lege ferenda. However,
it is contrary to general international law which
provides only for sanctions. But this principle
applies, as a rule, even today, the covenant of the
United Nations providing exclusively for collective
sanctions against aggressive wars and other breaches of
the peace and threats to peace (art. 39ff. of the
Charter of the United Nations)...No doubt the London
Four Power Agreement is therefore a penal law with
retrospective effect (ex-post-facto law) which can only
be justified as an order of the occupying powers under
art. 42 of the Hague Convention (No.IV) respecting the
Laws and Customs of War on Land, 1907."[158]
The plea of superior orders:
The annulment of the plea of superior orders as making an
offence not punishable by art. 8 of the London Charter[159]
constitutes a particularly dubious example of the extent and
in which manner the Allied Powers had deviated from the
principles of existing international law in order to deprive
their German enemies of means of legal defence rooted in the
existing international law.[160]
The main model for the repeal of the plea of superior orders
is to be found in an amendment of sec. 443 of the British
Manual of Military Law, made only in April 1943. This
amendment was made exclusively - as confirmed by Morgan - in
anticipation of the planned trials of war criminals:
"It (i.e. the amendment) was, as I have observed, only
made, in view of the Nuremberg Trial, in the nick of
time."[161]
The origin of this amendment itself is to be found mainly in
Lauterpacht's162 complete reversal of his own opinion in
this question.
In the 5th edition of Oppenheim's International Law - i.e.
during the War - Lauterpacht had adopted, still without any
change, Oppenheim's doctrine - which recognized the "plea
of superior orders" as justification - from the 1st till the
4th editions of the book, and had thereby confirmed this
doctrine. The former wording of sec. 443 of the British
Manual of Military Law constituted a nearly literal adoption
of Oppenheim's doctrine.
In an article published in 1944, "The Law of Nations and the
Punishment of War Crimes,"[163] Lauterpacht abandoned the
view previously held by him and advanced exactly the
opposite view, claiming that it reflected existing
international law. Lauterpacht's article had been made
accessible to the British Government already before its
publication;[164] the amendment made already before the
publication of Lauterpacht's article in sec. 443 of the
British Manual of Military Law amounted to a nearly literal
adoption of Lauterpacht's new thesis.
The amendment of the British Manual of Military Law, as well
as the sudden reversal of Lauterpacht's opinion, met in
England with harsh and frequent polemical and sarcastic
criticism.165 The following statement by Smith is
characteristic of this criticism:
"Perhaps it is not unfair to doubt whether Professor
Lauterpacht, who has justly earned the position of a
distinguished scholar in this country, would have
ventured, while serving in the Austrian Army in the
First World War, to act upon the doctrine which he now
holds."[166]

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